Workers at Risk: The Dangers on the Job When the Regulators Don’t Try Very Hard

An Interview with Margaret Seminario

Margaret Seminario is the Director of the Occupational Safety & Health for the AFL-CIO, where she has been since 1977.

Multinational Monitor: How many workplace deaths and injuries occur annually in the United States?

Margaret Seminario: The scope of the workplace injury and illness problem is enormous. Last year, there were more than 5,000 workers who died from traumatic injuries, and an estimated 50,000 to 60,000 who died from occupational diseases. The number of reported workplace injuries was over 6 million, and that number is clearly understated. OSHA [the Occupational Safety and Health Administration] itself has estimated that reported injuries may understate the problem by one half.

MM: How do those numbers compare to the numbers at the time at the founding of OSHA?

Seminario: They have come down, both the numbers and rates -- that's the good news. Workplace fatalities were at a level of about 13,000 when the Occupational Safety and Health Act was passed. The rate of injuries was 30 to 40 percent higher than it is today. So there has been a lot of progress, and the progress has been the most significant in industries where there has been the most significant regulation and enforcement. With respect to OSHA, we've seen the biggest declines in numbers and rates of injury in construction and manufacturing. The mining industry, which is subject to the Mine Safety and Health Act, a much stricter law, has seen the most significant declines in workplace fatalities and injury rates.

There has been a great deal of success, but problems remain quite serious and extensive.

MM: What kind of enforcement tools does OSHA have at its disposal?

Seminario: OSHA has limited tools and limited resources.

Federal OSHA is responsible for safety and health enforcement in over half the states. Federal OSHA has an inspection force of less than 1,000 inspectors, and there are probably 4 million workplaces in the states where federal OSHA has responsibility. The states assume responsibility in the other states and they have about an equal number of inspectors.

We've got 2,000 job safety inspectors in the country responsible for overseeing and enforcing the safety and health laws in more than 6 million workplaces.

OSHA actually has fewer staff today than it did in 1980. The workforce and the number of workplaces has grown, but the agency's resources have not grown.

As far as the law itself, the law is pretty much today what it was in 1970. The agency has available the same tools it had in 1970, which is essentially the ability to inspect, to cite employers for violations, propose penalties and seek to enforce its orders.

But there are many aspects of the law that are quite weak. The agency has no ability to require an immediate abatement of hazards while a legal contest is pending. So hazards can go uncorrected for years while litigation is pending. They have the right to shut down dangerous jobs, but they have to go to court to get an order; they don't have an immediate shut-down authority, which would be helpful in dealing with imminent danger situations.

And the criminal penalties under OSHA are very, very weak. The law provides for criminal penalties only in cases where a willful violation has resulted in the death of a worker. Those provisions have been used on very few occasions, so it really does not provide a strong hammer. The level of criminal penalties in the OSH [Occupational Safety and Health] Act basically make the events a misdemeanor, which means that these are not high priority cases for the Justice Department to take up and prosecute. Senator Corzine has introduced a bill to make criminal violations of OSHA a felony, which is a step in the right direction, but even that bill would not expand the instances in which OSHA may use criminal penalties to enforce the law.

MM: How frequently is the criminal prosecutorial authority actually used?

Seminario: I haven't looked at it recently, but we're talking about a handful of occasions in 30 years -- at most, a couple of times a year, if that, out of the 40,000 inspections that the agency conducts annually.

MM: And on the civil side, what's the penalty structure?

Seminario: The penalty structure under OSHA provides for a range of citations and penalties from ones that are diminutive, that carry no penalty, to the other end of the scale, willful violations of the statute, which can carry up to a $70,000 penalty per violation. The problem is that OSHA has not used the full authority that is available to it to cite employers and penalize them for violations. Under the Bush administration, the enforcement has become even less aggressive than it has been in the past.

MM: What is a willful violation?

Seminario: A willful violation is where the employer had knowledge that there was a hazard that was likely to cause death or serious harm and decided not to comply with the law.

For fiscal year 2002, the federal OSHA only issued 392 willful violations, down from 600 in fiscal year 1999. The average penalty for a willful violation was $27,000, where the maximum would be $70,000.

What we've seen is that while the inspection levels have been maintained by the Bush administration, the level of enforcement and the aggressiveness of enforcement has decreased. The number of willful violations, the number of repeat citations, and then the penalties that are associated with OSHA violations are all down.

MM: So that's $27,000 for knowingly risking a worker's life?

Seminario: Yes, where there was a likely risk of serious harm.

MM: What is OSHA's budget, and how has it been trending?

Seminario: The budget for OSHA in this latest fiscal year is about $450 million. That is essentially level funding for the program.

Every year since the Bush administration has taken office, they have proposed to cut OSHA's budget, particularly with regard to standards and enforcement. And for the last several years, the Congress has rejected these proposals and instead has moved to fund OSHA at a level that would maintain or slightly enhance its program.

MM: What is the National Institute on Safety and Health (NIOSH) budget?

Seminario: In the last couple of years, NIOSH has been level funded. And this is another case where the Bush administration each year has proposed to slash the budget significantly and the Congress has rejected those proposals and maintained the funding for the agency. In fiscal 2004, for example, NIOSH's budget was $275 million, and for fiscal '04, the Bush administration has proposed $246 million, a very significant cut in the research agency's budget.

MM: Probably the most prominent controversy at OSHA over the last 15 or 20 years has been over ergonomics and repetitive stress injuries. What is the status of regulation in this area?

Seminario: The ergonomics standard was initially promised by the first Bush administration back in 1990. Secretary of Labor Elizabeth Dole committed the agency and the department to developing and initiating an ergonomics standard.

Muscular and skeletal disorders are the biggest source of workplace injuries. They account for one third of all serious workplace injuries.

For a number of years, OSHA was in the process of developing a rule. When the Republicans took control in 1995, stopping or killing the ergonomics standard became a top priority of their ideological agenda to stop major regulations. A five-year struggle ensued, with the Clinton administration trying to move forward with the rule, and the Republicans in Congress and industry trying to stop it.

Ultimately, a rule was proposed in November 1999, and a final rule was issued in November of 2000. When President Bush took office, one of the first actions of the Congress during his administration was to use the Regulatory Review Act, which had never been used before, to overturn the rule. That was an action that the Bush administration supported, and indeed signing the legislation overturning the ergonomics standard was the first major legislative act of President Bush.

Now there is no regulation. The Bush administration has refused to move forward any new regulation. Instead, it has put forward a voluntary approach based on guidelines and outreach. They've said they will enforce some of the general duty clause [which imposes a general duty on employers to protect workers from hazards likely to cause death or serious harm], but in two years time we've seen poor enforcement action under the general duty clause for ergonomics.

Essentially what has happened is that they have refused to address in any serious way the biggest job safety and health problem in the country.

MM: What was the essence of the regulation that was overturned?

Seminario: Where there were injuries occurring -- musculoskeletal disorders, repetitive motion injuries, carpal tunnel syndrome, back injuries -- the regulation required employers to evaluate the jobs to see if there were ergonomic hazards present, such as excessive repetition or poor workstation design. If there were hazards present, the regulation required employers to take steps to reduce those hazards.

That essentially was what that rule was about -- identifying hazardous conditions, and fixing them to reduce the risk of injury. It didn't require eliminating the hazard, it required reducing the hazards. It required employers that had widespread problems to actually have a systemic approach to doing this. It essentially mirrored the approaches that employers who have addressed ergonomic problems have taken, and put this forward in the form of a mandatory requirement.

MM: What were the projected health benefits for that kind of program?

Seminario: It was projected to cut the numbers or rate of musculoskeletal disorders in half. Last year, employers reported over 500,000 musculoskeletal disorder injuries resulting in workers losing time from the job; since these injuries are understated by about a half, there were probably about a million of these injuries causing workers to spend time off the job. The standard would have cut that level at least in half.

This is a huge problem economically as well. The cost of these injuries are massive. These injuries probably account for half of all the worker's compensation costs. They are soft tissue injuries, the type of injuries that take time for people to recover from -- some people never recover -- so people lose a lot of time from the job. An average case of carpal tunnel syndrome results in 27 days off the job, for example.

MM: So this really was a strong counter to the employer argument that the rule would have been too expensive?

Seminario: Exactly. What's interesting is that their arguments in the political arena are totally contradicted by the experience in the real world of the workplace. Employers that have taken steps to address ergonomic hazards and musculoskeletal disorders generally see very good results. They see that by taking fairly straightforward steps they can significantly reduce and in some cases eliminate these injuries. In six months or a year, they've got their investments paid for, because these injuries are so costly. There were hundreds of examples in the record testimony from employers, demonstrating that this was the case. But the ideology and the opposition to regulation was stronger and trumped the economic reality.

MM: The story has been similar with other workplace safety and health regulations?

Seminario: It's fair to say that the administration has just shut down the regulatory operation at OSHA. There are no major rules moving forward. They first moved on ergonomics and then they moved to withdraw dozens of rules from the regulatory agenda, with the statement that they were only going to put on the agenda rules that they were actually going to do. That was about a year and a half ago, and now they have moved to kill off all the rules that remained on the agenda.

MM: The tuberculosis rule is one of those.

Seminario: The unions first petitioned for the rule a decade ago. In 1992, the agency declined to issue an emergency standard, but committed to developing a permanent rule. It was a rule that essentially would have made mandatory the CDC guidelines on dealing with tuberculosis particularly in health care settings. It involved such matters as infectious control procedures and training. It was a rule that clearly was important for health care workers in the United States.

It had gone through the entire rule-making process. The Bush administration reopened the record when it came into office to take more comments, and now has made a decision that it is going to withdraw the rule and basically wipe out 10 years of work and stop any legal protections from being put into place.

This is at a time when, obviously, there are very significant and real concerns about infectious diseases, particularly in a healthcare setting in the form of SARS, bio-terrorist threats, etc. The kind of precaution and control measures in the tuberculosis standard are exactly the same ones that you would utilize for protection of workers against any airborne infectious agent. But the administration has apparently decided that no mandatory protections are needed.

MM: Another one of the contested rules involves personal protective equipment.

Seminario: That one actually hadn't been taken off the table, but they decided to hold that action. This is a simple rule. It establishes as a matter of regulation the longstanding OSHA policy that when OSHA standards require that employers provide personal protective equipment -- hard hats, protective clothing, a variety of different kinds of protective equipment -- then "provide" means that the employer has to pay for that equipment.

This has been OSHA's policy for a long time, but it was never codified. There was an employer challenge and the OSHA review commission held that while it might be a policy, it needed to be established as a matter of regulation. So the agency was attempting to do what the review commission had suggested -- not change its policy, but merely codify it in a regulation.

That's gone through the whole process -- there was a hearing, there was no objection to it. But this administration has refused to finalize it.

Most employers do pay for equipment, but not all do. The workers who are most at risk are those who are low-wage, not unionized, who don't really have anyone to speak on their behalf, who are most likely to be exploited by their employers. This is a rule that is particularly needed for workers who are the most at risk of injury or death, in many cases immigrant or Hispanic workers.

MM: What about the record-keeping rule?

Seminario: This is an OSHA regulation that was, again, many years in the making. It was the result of extensive dialogue between employers, unions and the agencies to update the record-keeping requirement. Included in the rule were requirements that the new OSHA log in the workplace have specific places to record hearing loss, specific places to record musculoskeletal disorders -- since these are widespread problems. The administration has stayed the provision on record keeping, they changed the provisions on what constitutes a hearing loss, and on musculoskeletal disorders they are continuing to stay a requirement to identify which injuries are musculoskeletal disorders. We expect that they will try to weaken the definition of what is a musculoskeletal disorder, to make it look like the problem is going away.

If you change the definition and the injuries don't have to be recorded, it makes it look like the problem is being taken care of when it's not.

MM: The rule-making process allows for unions or others to petition for new rules. You recently submitted a petition to OSHA on chemical safety?

Seminario: In the early 1990s, OSHA issued a regulation which required chemical plant operators to do hazard analyses of their facilities and then take steps to address their dangerous chemical processes. But there's a big loophole in the standard in that it covered certain types of chemicals, but it didn't cover reactive chemicals -- chemicals that could react with another chemical and cause a significant problem. In the last 10 years, these reactive chemicals have been responsible for a large number of chemical plant accidents, a large number of fatalities and a large number of injuries. So the petition requests OSHA to close this loophole.

This is an issue that the unions raised with OSHA back in 1995. OSHA had promised it would address it through rulemaking. The rule was on the OSHA regulatory agenda and taken off by the Bush administration a year or so ago.

It's also an area that the independent Chemical Safety Board looked at in some detail. Six months ago, they came out with a recommendation that OSHA as well as EPA [the Environmental Protection Agency] update and tighten their chemical process safety standards to include reactive chemicals.

MM: What's the obligation to respond to the petition?

Seminario: There is not a specific obligation in the sense of a timeframe for action or response, though that doesn't mean they can ignore it and not act. The general practice is for courts to review whether there has been unreasonable delay by the agency. Recently, OSHA was sued by Public Citizen and PACE [Paper, Allied, Chemical Employees Union] for failure to act on hexavalent chromium, and the court did indeed find that there was unreasonable delay and ordered OSHA to move forward with the rule.

MM: How long was the delay in the hexavalent chromium case?

Seminario: It was another one of these hazards that had been under consideration for over a decade.

MM: Given an example like that, to what extent is the Bush administration really just continuing the general disregard for workers' safety and health that extends across both parties?

Seminario: It's quite different, because the Bush administration basically is not moving on anything. There were a number of rules the Clinton administration was trying to move forward on. Part of it was a question of what priorities they set. Some folks thought they should have done hexavalent chromium, others folks thought they should have done other items.

But you also have to remember that during the Clinton Administration, unfortunately, as of January 1995 you had a rabid Republican Congress which was challenging the agency on everything it did. You had an assault on the agency by the right wing and by the employers to try to shut down the agency and stop them from doing anything.

On regulatory matters, every year there were riders, legislative provisions prohibiting OSHA from taking action on ergonomics, tuberculosis and other regulations.

On top of that, there were additional requirements being imposed in the regulatory analysis area -- requiring cost analysis, small business analysis and others before regulations could be issued -- so that the regulatory process became extremely hard and difficult.

I think that there is definitely a difference in terms of the agenda and desire to move forward on regulation. What we've got now is an administration that has no commitment to doing any new regulation and a process that makes it quite difficult to get anything done.

MM: You have highlighted the particular problems of immigrant workers. What special health and safety problems do they face and why?

Seminario: Despite the progress that has been made across many sectors among many groups of workers as far as reduced injuries and fatalities, for immigrant workers the situation has gotten much worse, both with respect to numbers and rates.

You might expect the increases in the numbers Hispanic workers injured, because they represent a larger proportion of the workforce, but what we see is disproportional and very significant increases in the rates of fatalities and injuries.

The problems are particularly significant in certain industries, such as construction and agriculture. These are higher risk industries. The immigrant workers in these industries tend to be among the workers who aren't organized, so they don't necessarily have legal protections, and may be afraid of raising safety and health issues. Many of the fatalities are occurring in smaller workplaces. Smaller employers often don't provide the kinds of protections that are needed.

This is an area that is definitely being addressed in many union organizing campaigns. In the construction industry and agriculture, many of these health and safety concerns are ones that are first and foremost in workers' minds.

This is an area where the interventions that are needed are ones that have to be targeted to the workers at risk in the industries where they work, and in the communities where they work rather than some broad general approaches. We need some real action by the government to be clear it's going to take these matters seriously and get out there and not just outreach to immigrant workers, but enforce the anti-discrimination provisions of OSHA in a very aggressive way and a very public way.